Tuesday, May 5, 2015
Yesterday I posted about a new report on Americans' views of the "retirement crisis". Another report from the same organization, National Institute for Retirement Security ,focuses on Americans saving for retirement. The Continuing Retirement Savings Crisis is a 30 page report that offers 4 key findings:
- Account ownership rates are closely correlated with income and wealth…
- The average working household has virtually no retirement savings. When all households are included— not just households with retirement accounts—the median retirement account balance is $2,500 for all working-age households and $14,500 for near-retirement households…
- Even after counting households’ entire net worth—a generous measure of retirement savings—two thirds (66 percent) of working families fall short of conservative retirement savings targets for their age and income based on working until age 67...
- Public policy can play a critical role in putting all Americans on a path toward a secure retirement by strengthening Social Security, expanding access to low cost, high quality retirement plans, and helping low income workers and families save…
Here we go again. Another hard look at why a significant percentage of the public has not signed some form of advanced directive. In April 2015, GAO issued Advance Directives: Information on Federal Oversight, Provider Implementation, and Prevalence, its response to requests made by Senators Bill Nelson (D-Fla), Johnny Isakson (R-Ga), and Mark Warner (D-Va) who were inquiring into the role of the Centers for Medicare and Medicaid Services (CMS) in overseeing providers, including hospitals and nursing homes, that are mandated by law to maintain written procedures and provide information about advance directives.
Perhaps it is just me, but whenever legislators raise this topic, it seems to me the not-so-subtle underlying message is "why aren't people agreeing in writing to forego aggressive health care as they near the end of life so that we can save more money on health care?"
In any event, the report:
- documents current practices for offering living wills, health care powers of attorney, and various alternatives such as DNR and POLST forms (including the potential for some confusion among staff members of health care providers about "who" should be handling the education and signing process),
- refers to a major Institute on Medicine study (Dying in America, 2015) on a similar topic, and
- concludes that there is no "single" point of entry for execution of advanced directives.
As the GAO team observes, "[t]herefore, a comprehensive approach to end-of-life care, rather than any one document, such as an advance directive, helps to ensure that medical treatment given at the end of life is consistent with an individual’s preferences."
Hat tip to Karen Miller, Esq., in Florida for the link to the latest study and report.
May 5, 2015 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Estates and Trusts, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (1) | TrackBack (0)
Monday, May 4, 2015
The National Institute on Retirement Security has issued a new report, Retirement Security 2015: Roadmap for Policy Makers. Americans' Views of the Retirement Crisis. The 36 page report offers 7 key findings
- An overwhelming majority of Americans believe there is a retirement crisis...
- Three in four Americans remain highly anxious about their retirement outlook, but the concern has dissipated slightly as the economy has recovered…
- Even though Americans feel slightly less stressed about their retirement prospects, support for steady and reliable retirement income from a pension is high and growing…
- Americans continue to feel that leaders in Washington do not understand their struggle to save for retirement, and they strongly support efforts by states to set up retirement plans for those workers without access to an employer sponsored plan…
- Americans see retirement benefits as a job feature that is almost as important as salary...
- Americans express strong support for pensions for public employees…
- Protecting Social Security benefits is increasingly important…
The nationwide poll is conducted every two years and "is intended to serve as a tool for policymakers, thought leaders and retirement service providers as they work to stem the retirement crisis and re-fortify the U.S. retirement infrastructure." The full report is available here.
The Employee Benefits Research Institute (EBRI) recently published an interesting examination of financial situations of older Americans at the end of their lives. The report documents:
- the percentage of households with a member who recently died "with few or no assets,"
- the continued importance of Social Security for older households,
- the potential importance of "big data" analytics "to determine how people behave when it comes to health and retirement plans," including the potential to "get better results at lower cost," and
- the fact that the "health sector is considerably farther down the road than the retirement sector in using data analytics in benefits plan design and management."
Sunday, May 3, 2015
My Retirement Paycheck is an interactive website from the National Endowment for Financial Education. The website offers 8 icons on which the user clicks to learn more about the topic. The 8 topics include home & mortgage, insurance, retirement plans, savings & investments, debt, fraud, work and Social Security. Each topic offers information in an easy to understand format and links for additional readings.
Friday, May 1, 2015
I strongly suspect that my Blogging colleague Becky Morgan, who embraces new technology, will approve. As detailed in the New York Time's business section, Japan's leadership position in a surprising market sector-- as the nation with the highest percentage of older citizens -- has inspired innovation:
Japan is an incubator of aging.... Twenty-five percent of its population, or 33 million people, are age 65 or older, more than double the global average.
IBM, Apple and Japan Post Group, a giant postal service, bank and insurer, declared on Thursday that they were joining to deliver a new technology service to the fast-growing market of older Japanese adults. The service involves equipping Japan’s silver generation with iPads loaded with software apps to help them communicate with family and friends, monitor their health, and buy goods and services.
Criminal Record? Is Life-Time Ban from Care Industry Employment Necessary to Protect Older, Vulnerable Persons?
In 2003, in Nixon v. Commonwealth, Pennsylvania's Supreme Court struck down a provision of the state's Older Adult Protective Services Act that imposed an absolute bar on designated care "facilities," including nursing homes, personal care homes, and home health agencies, prohibiting them from hiring "new" employees who had been convicted of certain crimes. The Court concluded that the prohibition, which affected only "new" employees, or those working at a covered facility for less than one year, did not bear a real and substantial relationship to the Commonwealth's interest in protecting the elderly, disabled, and infirm from victimization, and therefore unconstitutionally infringe[d] on the Employees' right to pursue an occupation."
Twelve years later, the Pennsylvania legislature, despite consideration of many proposals to "fix" the "Nixon case problem," still had not amended the statute. (This is the second time in a week that Pennsylvania's speed -- or lack thereof -- in enacting important reforms has attracted media attention.) As explained by NPR in a feature story by Carrie Johnson, a new lawsuit again challenges Pennsylvania's employment ban:
In 1981, when he was just 18, [Tyrone] Peake was arrested with a friend for trying to steal a car to take a girl home after a long weekend. "No, we never got the car," Peake said. "We broke the ignition column and then the cops came."
Peake couldn't even drive back then. He says he was just along for the ride. He never went to prison. Instead, he got probation. But that single charge years ago still haunts him, sometimes even after he's gotten work....
"I've been fired from three jobs," Peake said, "because [of] having a criminal record. And my record is like 32 years old, and I haven't been in trouble since then." A lot's happened since the 1980s for Peake. He went back to school, and he's been working part time as a counselor for men addicted to drugs and alcohol. But the law prevents him from being hired full time to work in a nursing home or long-term-care facility because of that single criminal conviction.
Peake's history of attempting to get on the right side of the law presents a dramatic contrast between the law's laudable purpose of protection of vulnerable adults and its sometimes harsh effect. For more, see NPR's Can't Get A Job Because Of A Criminal Record? A Lawsuit Is Trying To Change That.
May 1, 2015 in Crimes, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Thursday, April 30, 2015
The Long Term Care Community Coalition has released a new report, Safeguarding Nursing Home Residents and Program Integrity A National Review of State Survey Agency Performance. The 30 page report looks at several topics, including resident harm, inappropriate use of antipsychotic drugs , staffing and treatment of pressure ulcers. The report makes a series of recommendations for CMS and state survey agencies:
1. Re-commit to their mission as enforcement agencies. Residents and their loved ones depend on enforcement agencies to ensure that providers are meeting - or exceeding - standards of care. Tax payers depend on CMS and the SAs to assure financial integrity of the billions of dollars spent each year on nursing home care. However, too often (in our experience), CMS and the individual SAs treat the industry as their client, and its interests as paramount, rather than those of the residents, their families and tax payers.
2. Improve resource allocation. CMS and the SAs should be dedicating their limited resources to fostering vigorous oversight, not training, engaging or otherwise trying to encourage providers to attain the minimum standards of care for which they are already being paid to achieve...
3. Comply with federal Survey Agency requirements. CMS and the SAs should focus efforts on achieving both the letter and the spirit of the law, regulations and the State Operations Manual....
4. Improve performance assessment & integrity.
a. CMS and the SAs should improve training and direction of surveyors...
b. The SAs should collect and assess data on their survey teams’ identification of deficiencies and identification of harm and assess these data in relation to relevant measures (including, inter alia, antipsychotic drug use, staffing levels and pressure ulcer rates)...
c. CMS should conduct, on a regular basis, similar performance assessments of the SAs and the CMS Regional Offices to identify and address weaknesses in quality assurance and oversight. CMS should include in its assessment an analysis of SA complaint handling that includes review of a sampling of actual complaints to determine if they were appropriately investigated and resolved.
I tend to think of "Elder Law" as a subset of "Laws and Policies of Aging." Given what appears to me to be a steady increase in public concern about ways in which some older persons are exploited financially, it occurs to me that we may be at a point where "fiduciary duty" is becoming a central -- perhaps even the central -- concept for the future practice of Elder Law, overtaking even Medicaid planning and end-of-life health care planning. Seasoned practitioners already know that the "million dollar question" in Elder Law is "who is my client?" -- a question intimately tied to carrying out fiduciary duties as an attorney.
Along that line, I've been digging into my stack of "must read" books, a stack that is always a threat to my safety as it gets taller and taller no matter how fast and furiously I read. I'm very much enjoying a book by Boston University Law Professor Tamar Frankel titled, simply enough, Fiduciary Law (Oxford University Press, 2011).
Early in the book, the author, whose teaching and research interests include corporation governance and regulation of financial systems, proposes a definition of "fiduciary relationships," which I find both intriguing and conducive to discussion. I don't think it is taking too much away from her full book, to repeat the four features Professor Frankel proposes as triggering fiduciary duties. She writes:
April 30, 2015 in Books, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, Retirement | Permalink | Comments (1) | TrackBack (0)
Wednesday, April 29, 2015
The Insured Retirement Institute (IRI) has issued its 5th annual report on Boomer Retirement Preparedness. Boomer Expectations for Retirement 2015 Fifth Annual Update on the Retirement Preparedness of the Boomer Generation is a 24 page report, and offers the following "key observations":
- Overall economic satisfaction among Boomers dropped precipitously in 2015, to 48% from 65% in 2014 and further down from 76% in 2011.
- The decline in overall satisfaction was more pronounced among retirees, plunging to 45% from 72% in 2014, versus 53% of working Boomers feeling satisfied compared to 60% in 2014....
- Only six in 10 Boomers report having money saved for retirement, down sharply from prior years when approximately eight in 10 had retirement savings.
- A significant number of Boomers continue to struggle financially; in the past 12 months:
- Almost one-quarter of Boomers reported that they have had difficulty in paying their mortgage or rent.
- 19% of working Boomers stopped contributing to a retirement account such as a 401(k) or IRA.
- 24% of Boomers postponed plans to retire.
- The percentage of Boomers feeling extremely or very confident they will have enough money to last throughout retirement has declined significantly, to 27% of Boomers in 2015 from almost four in 10 in 2011.
The report discusses a number of topics including annuity ownership, economic life satisfaction, short term and long term financial outlook, retirement expectations, retirement planning, planning for negative results, and the advantages to using financial advisors.
The report concludes
As a group, the Baby Boomer generation is feeling less confident in their prospects and preparations for a secure retirement, and are more concerned about specific aspects of retirement such as medical expenses, children’s educations, and long term care. Paradoxically, however, many believe they will enjoy a more secure retirement than their parents did, and even those with relatively little saved for retirement and no pensions expect to enjoy travel and leisure activities in retirement in addition to paying for their basic needs and medical costs. While this may be unrealistic for many, the study finds that Boomers who work with financial advisors, and those who own annuities, are far more likely to have set goals, to have saved (and saved more) for retirement, and to feel both more economically satisfied currently and better prepared for retirement.
After my blog piece earlier this week about "elder guardianship" concerns in Florida, I've received communications about similar concerns in other states, including Nevada.
According to a report by Contact 13 (ABC affiliate), on April 21 Commissioners in Clark County (Las Vegas area) conducted a "first-of-its-kind" hearing on alleged guardianship abuses that were described by some as "appalling, frightening and plagued by problems." At the heart of the complaints by individuals and family members was frequent court appointment of "private guardians" rather than family members, and an alleged absence of notice to family members about court hearings. A "blue ribbon" panel or expert may be appointed to audit Clark County's court-supervised guardianships. A recent statement by the Chief Judge for the district court, set forth in full on the Contact 13 website, pledges the court's commitment to "ensuring clarity and instilling public trust in the process of handling guardianship cases.
According to the Las Vegas Review-Journal, the Chief Judge's response follows a series of stories by the Review-Journal about "thousands of elderly and mentally ill in Clark County open to exploitation."
As reported by the Las Vegas media, the problems reported in Nevada are not unique to one county or even to one state, as demonstrated by an Associated Press series of articles in 1987 titled "Guardianships of the Elderly: An Ailing System." See also the national Center for Elders and the Courts for more information on guardianship reforms in state courts.
April 29, 2015 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0) | TrackBack (0)
While much is written and talked about "gridlock" in the Nation's Capitol, state legislatures can also be locked in political battles or internal power struggles that delay even "agreed" reforms, including health care reforms. In Pennsylvania, it often takes several sessions and multiple introductions of the same legislation to get a bill to a final vote. Here is a window into the delays, provided by WITF Radio: Persistence, Hustle Needed to Turn A Health Care Bill Into Law, by Ben Allen.
Tuesday, April 28, 2015
Another change from the Medicare Access and CHIP Reauthorization Act of 2015 is that Medicare will stop using beneficiary Social Security numbers on the Medicare cards. Section 501 of the new law provides that
The Secretary of Health and Human Services, in consultation with the Commissioner of Social Security, shall establish cost-effective procedures to ensure that a Social Security account number (or derivative thereof) is not displayed, coded, or embedded on the Medicare card issued to an individual who is entitled to benefits under part A of title XVIII or enrolled under part B of title XVIII and that any other identifier displayed on such card is not identifiable as a Social Security account number (or derivative thereof).
This will appear in 42 U.S.C. 405(c)(2)(C)(xiii). The changes won't necessarily occur immediately and "shall apply with respect to Medicare cards issued on and after an effective date specified by the Secretary of Health and Human Services, but in no case shall such effective date be later
than the date that is four years after the date of the enactment of this Act." The same holds true with reissuing cards; HHS has up to 4 years from the date the Secretary picks for the new cards.
This is a critically important step, what with the rise of identity theft. It has been a long time coming.
U.S. Department of Justice and Fraud Schemes Targeting Older Americans
- Wed, May 27, 2015 1:00 PM - 2:30 PM CDT
Rich Goldberg (Assistant Director, U.S. Department of Justice, Consumer Protection Branch); Kate Drenning (Trial Attorney, U.S. Department of Justice, Consumer Protection Branch); Ann Entwistle (Trial Attorney, U.S. Department of Justice, Consumer Protection Branch)
Additional sponsorship for this Webinar is provided by a grant from the Administration on Aging/Administration for Community Living. This webinar is part of a series of National Elder Rights Training Project webinars for the National Legal Resource Center.
There is no charge for this webinar.
All time listings are in Eastern Time.
If you have any questions email firstname.lastname@example.org
According to the Atlanta Journal-Constitution, the "long-time head of [Georgia's] powerful nursing home lobby has resigned after months of internal differences." The resignation appears to be about more than just internal politics, perhaps implicating state ethics. AJC explains:
"The resignation of Jon Howell, first reported by Georgia Health News, came only a few months after he told lawmakers that the industry didn’t need all of the money Gov. Nathan Deal recommended as part of a rate hike for select nursing homes. Several of those nursing homes are owned by one of Deal’s top contributors. But one state official said the 'civil war' within the organization began before this year’s General Assembly session.
The nursing home association is a major player at the statehouse, and owners have a big stake in what happens at the Capitol. The state pays more than $1 billion a year to nursing homes to care for Georgians. Owners have long been politically active, donating big money to state leaders and lawmakers who fund reimbursements. Earlier this year, Deal recommended that select nursing homes get a $27 million a year rate increase, a bump stalled by the Department of Community Health board last year...."
Separate articles in the AJC indicate that federal CMS authorities are now seeking millions of dollars of reimbursement for Medicaid payments made to 34 specific nursing facilities, although whether this claim correlates with the governor's recommended rate increase is not clear from the articles. State officials are reported as disagreeing with the federal CMS ruling that triggers the reimbursement claim.
Recent rate increases recommended by the Georgia governor were rejected by Georgia's General Assembly. Additional coverage on the Georgia nursing home industry's organization is provided by McKnight's Long-Term Care News.
I suspect the Georgia stories are part of a bigger picture. Compare, for example, Al Jazeera's America Tonight report from April 2014 on The Whopping Political Power of the Florida Nursing Home Lobby, describing the nursing homes advocating for placement of children into facility-based care.
Monday, April 27, 2015
On April 15, 2015 the SEC and FINRA issued a report, National Senior Investor Initiative. Together the SEC Office of Compliance Inspections & Examinations and FINRA conducted a review of 44 broker-dealers to look at "how firms conduct business with senior investors [65 and older] as they prepare for and enter into retirement." The examinations looked a long list of items in broker-dealer interactions with clients 65 and older, including "how firms address issues relating to aging (e.g., diminished capacity and elder financial abuse or exploitation)..."
This report highlights recent industry trends that have impacted the investment landscape and prior regulatory initiatives that have concentrated on senior investors and industry practices related to senior investors. Additionally, the report discusses key observations and practices identified during the recent series of examinations.
The 42 page report, after providing background on the initiative, discusses 9 topics, including documentation, disclosures, complaints, training, supervision, suitability, marketing, "senior designations" and securities purchased. Each section contains a conclusion as well as "notable practices." The overall conclusion includes this excerpt
The current environment, where traditional savings accounts and other conservative investments are earning historically low yields, may prompt firms to recommend and senior investors to purchase more non-traditional securities, such as variable annuities, non-traded REITs, structured products, and other alternative products. OCIE and FINRA staff are concerned that broker-dealers may be recommending unsuitable securities to senior investors or failing to adequately disclose the related risks. It is imperative that senior investors receive proper and understandable disclosures regarding the terms and risks related to securities recommended to them, particularly non-traditional investments.
Occasionally I feel a little "push-pull" from the different directions that writing about "laws and policies of aging" takes me. One minute I'm writing about hunger for seniors in our nation's capitol, a dynamic driven by poverty, and then there is today's story from NPR on Drop-In Chefs Help Seniors Stay in Their Own Homes.
"Part of the business plan is keeping the service affordable. In addition to the cost of the food, the client pays $30 an hour for the chef's time. That's usually a couple of hours a week of cooking and cleaning up the kitchen. There's also a $15 charge for grocery shopping. So clients pay on average $45 to $75 a week.
And while there are lots of personal chefs out there and services that deliver meals for seniors there are few services specifically for older adults that prepare food in their homes."
All part of the big, complex picture of "aging."
Recent news reports in the Sarasota Herald-Tribune have focused on "elder guardianships" in Florida. The articles include:
- The Kindness of Strangers: Inside Elder Guardianship in Florida, a three part "special project."
- A Civil Dispute Over Guardianship, detailing a conflict between co-trustees for a man in his 90s over costs of care. One trustee was concerned about what appear to be charities named as remainder beneficiaries and was described as making "imaginative" use of a guardianship to challenge the wife's role as the other named trustee. A sidebar in this article describes bills pending in the Florida legislature seeking to clarify the legal effect of a "power of attorney" when a guardianship petition is filed.
- Film to Detail Horror Stories from Florida Guardianship, describing a video project to share "stories about Florida's adult guardianship system," supported by a local "nonprofit organization called Americans Against Abusive Probate Guardianship."
April 27, 2015 in Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
On April 24, 2015, Iowa's Governor signed SF 306 into law, amending Iowa's Guardianship Law to recognize an express right of adult wards to "communication, visitation, or interaction with other persons." The law's effective date is July 1, 2015.
The law further provides that a court shall deny such rights "only upon a showing of good cause by the guardian." In the absence of an ability to give "express consent to such communication, visitation or interaction with a person due to a physical or mental condition, consent of an adult ward may be presumed by a guardian or a court based on an adult ward's prior relationship with such person."
This is an interesting law, especially coming on the heels of the Henry Rayhons trial in Iowa, even though there appears to be no direct correlation. The new provision does not, for example, define "interaction."
According to news reports, Kerri Kasem, the daughter of radio D.J. Casey Kasem, was present at the ceremony and lobbied for the bill after her late father was moved from his nursing home in California, first to Nevada and then to Washington without his children's knowledge or consent:
“This is a silent epidemic,” she said. “There are so many abuses of guardianships and so many abuses of caretakers.”
April 27, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Sunday, April 26, 2015
Curious Behaviors That Can Ruin Your Retirement is an interactive program on behavioral impediments to retirement planning. A host leads users through exercises designed to create an “Aha!” moment as they relate to the behaviors. The host then explains how the behavior can hinder retirement planning and how to cope with it. Users can then go to a “Learn More” page with additional information in various media formats.
The link to the tool is available here. It takes about 10 minutes to work through it. Check it out and have your students check it out as well!